Lowther v. St. Mary's Cnty. Office of the Sheriff Trial Bd., 1774

KELLY M. LOWTHER v. ST. MARY'S COUNTY OFFICE OF THE SHERIFF TRIAL BOARD

No. 1774

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

July 25, 2017

UNREPORTED

Meredith, Arthur, Friedman, JJ.

Opinion by Meredith, J.

This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Kelly M. Lowther, appellant, was formerly employed as a Corporal by the Office of the Sheriff for St. Mary's County, appellee. She served as a correctional officer at the St. Mary's County Detention Center in Leonardtown, Maryland. On June 1, 2014, while attending a social gathering at a conference of the Maryland Correctional Administrator's Association in Ocean City, Maryland, Ms. Lowther became intoxicated and made lewd comments to some of her supervisory officers. She also slapped her commanding officer in the face. As a result of her behavior, she was charged with violating the rules and procedures of the Sherriff's Office. Following a hearing by an administrative hearing board, Lowther's employment was terminated by St. Mary's County Sheriff. Lowther sought judicial review in the Circuit Court for St. Mary's County. The circuit court upheld the decision of the Sheriff. This appeal followed.

QUESTIONS PRESENTED

Lowther presents two questions for our review:

I. Did the Circuit Court err in finding that the [administrative hearing board]'s confirmation of the facts alleged during the administrative hearing conformed with Md. Code Ann., Correctional Services, § 11-1009(a)(1)?

II. Assuming, arguendo, that the [administrative hearing board] did not conform to the requirements set forth by Md. Code Ann., Correctional Services § 11-1009, did the Circuit Court err in finding that Sheriff Cameron complied with all relevant sections of [the Correctional Officers' Bill of Rights,] COBR?

For the reasons that follow, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The facts concerning this appeal are largely undisputed. Lowther was previously employed by the Office of the Sheriff for St. Mary's County as a Corporal, serving as a correctional officer at the St. Mary's County Detention Center. Her commanding officer was Captain Michael Merican, who was, at that time, the Commander of the St. Mary's County Sheriff's Office Corrections Division, and was formerly the President of the Correctional Administrator's Association. In 2014, Captain Merican was the highest ranking officer in Lowther's chain of command except for Sheriff Tim Cameron. On June 1, 2014, during the annual Maryland Correctional Administrator's Association Conference in Ocean City, Maryland, Lowther attended a social gathering of conference attendees in the Clarion Hotel's bar. She became intoxicated, and engaged in conduct that Captain Merican witnessed and considered unacceptable. In her brief in this Court, Lowther concedes that she committed the following acts on the night of June 1, 2014:

On that date, Appellant, as well as several other employees of the St. Mary's County Sheriff's Office, were present in Ocean City for a law enforcement conference. During the course of the social event at the bar, it is undisputed that Appellant made lewd comments to supervisory officers, including the following statements: "I hate my job . . . but I can suck cock all night long," "[I want] to blow the guys" at the end of the bar, and "[I] enjoy giving blowjobs." While making the first comment, Appellant was witnessed licking two of her fingers and running them down her chest. According to witness testimony presented during the [administrative hearing], Appellant appeared to be intoxicated when said comments were made.

It is further undisputed that, during the social event, Appellant's hand made contact with Captain Michael Merican's face on two occasions. During the [administrative hearing], witness Lt. William Baker testifiedthat he observed Appellant slap Merican: this testimony was corroborated by agency witnesses Merican and Kreps, and was further evidenced by video surveillance and still photographs capturing the incident.

The sole witness called by the Appellant during the [administrative hearing] was Kasmira Long, who testified that she observed Appellant's hand make contact with Merican's face on two occasions, but described the same as a "tap." There is disagreement between the parties as to whether or not Long's testimony corroborates or contradicts the evidence presented by the agency.

(Page references to record omitted.)

Lowther was charged with three violations of the St. Mary's County Sheriff's Office rules, policies, and procedures. The first charge alleged that Lowther failed to abide by the law when she slapped, and thereby assaulted, Captain Merican.¹ The second charge alleged that Lowther violated the St. Mary's County Sheriff's Office rules by engaging in unbecoming and rude conduct when she discussed performing acts of fellatio with other officers and later slapped Captain Merican.² The third charge alleged that Lowther violated office policy requiring employees to treat other employees with respect when she discussed performing acts of fellatio and slapped Captain Merican.³

On September 10, 2014, an administrative hearing board was convened pursuant to the Correctional Officers' Bill of Rights ("COBR"), Maryland Code (1999, 2008 Repl.Vol., 2013 Supp.), Correctional Services Article ("Corr. Serv."), § 11-1001 et seq., to hear testimony and receive evidence concerning the June 1 incident. Lowther concedes in her brief that "there is no argument in the matter sub judice to suggest that there was a lack of substantive evidence to find Appellant guilty of the administrative charges."

At the board's hearing, Lieutenant William Baker testified that Lowther had approached him during the gathering and stated: "I hate my job. But I can suck a cock all night long." Lowther then licked two of her fingers and ran them down her chest. Another participant at the event, William Griffin, testified that he had overheard Lowther telling Captain Merican that "she enjoyed giving blowjobs." Captain Merican testified that he had overheard Lowther say that she "wanted to blow the guys that were at the end of the bar." After Captain Merican asked Lowther what she was talking about, Lowther's hand made contact twice with Captain Merican's face. Lieutenant Baker testified that Lowther slapped Captain Merican in the face. Lieutenant Baker's testimony was corroborated by Captain Merican and an additional witness, as well as by video surveillance and still photographs of the incident. Captain Merican testified that, following the first slap, he told Lowther not to touch him again, at which point Lowther pushed Captain Merican's face with her hand. Captain Merican told the administrative hearing board that this incident was both personally embarrassing, and embarrassing for St. Mary's County, as it occurred in front of other officers from across Maryland, staff, and other guests.

Lowther had told investigators that she had been so intoxicated she had no recollection of what happened at the Clarion bar; she did not testify before the administrative hearing board. She called, as her only witness before the administrative hearing board, Kasmira Long, who worked as an inmate service coordinator for St. Mary's County. Lowther had been escorted out of the Clarion bar by Long immediately after the incident with Captain Merican. Long testified that she had seen Lowther "tap [Captain Merican's] face and then two seconds later, tap it again." Nevertheless, in a prior interview during the initial investigation of the incident, Long had stated that Lowther had slapped Captain Merican in the face. (She had told the investigator: "I believe she slapped him with her right hand." "To the left side of his face.") The characterization of the contact with Captain Merican's face -- whether a "slap" or a "tap" -- is the only factual dispute identified by Lowther regarding the evidence presented to the administrative hearing board. As noted above, Lowther concedes in her brief that her "hand made contact with Captain Michael Merican's face on two occasions."

The administrative hearing board, in a unanimous decision, found Lowther guilty of all three charges. The board issued its written summary on October 3, 2014. In its summary, the administrative hearing board provided the following recommendations for punishment for the infractions: "Charge # 1 Guilty, Demotion of one rank. Charge # 2 Guilty, 10 Day suspension without pay. Charge # 3 Guilty, 10 Day suspension without pay, consecutive to Count 2."

On October 29, 2014, Sheriff Cameron held a hearing pursuant to the Corr. Serv. § 11-1009(d)(5) because he was considering increasing the punishment for Lowther beyond what was recommended by the administrative hearing board. After stating that he had complied with the requirements of the COBR that must be met before a managing official may increase the penalty recommended by an administrative hearing board, see Corr. Serv. § 11-1009(d)(5)(i)-(iv), Sheriff Cameron invited Lowther to provide any comments she wished him to consider before ruling, stating:

Corporal Lowther, I'd now like to give you the opportunity to state on the record anything you'd like me to consider as it pertains to whether or not - excuse me, to consider as it pertains to whether I should accept the trial board's recommendation or whether I should exercise my discretion to increase it.

Lowther's attorney responded, and argued that the administrative hearing board's "recommendation [for punishment] is appropriate."

Sheriff Cameron then stated that he disagreed with the recommended penalty, and he considered the appropriate punishment to be termination. Sheriff Cameron stated, inter alia, that "Lowther's behavior was improper and her physical assault on Captain Merican was...